Trump’s Supreme Court nominee has a history of opposing regulations Congress didn’t explicitly authorize. That could be a problem for greenhouse gas policies.
In his dozen years on the federal appeals court that hears the most disputes over government regulatory power, Judge Brett Kavanaugh has compiled an extensive record of skepticism toward the government’s powers to act on climate change.
In particular, while Kavanaugh has repeatedly voiced the belief that global warming is a serious problem, he has challenged the argument that Congress has given the Environmental Protection Agency authority to do something about it.
That means the 53-year-old jurist, if approved by the Senate to fill the vacancy left by Justice Anthony Kennedy, could harden the high court for the next generation as a blockade to climate action that isn’t explicitly mandated by Congress. Though Kennedy was hardly a reliable vote for environmental protection, he was the pivotal vote in Massachusetts v. EPA, the 5-4 decision that in 2007 established that greenhouse gases were a pollutant that fit “well within” the EPA’s authority to regulate under the Clean Air Act.
“Judge Kavanaugh isn’t anti-environmental, but he tends to be anti-agency,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “He’s often struck down regulation that he didn’t think Congress had authorized explicitly enough. He reads statutory authority very narrowly and that is a major concern for things like the Clean Power Plan,” President Barack Obama’s signature climate initiative.